OVERTIME ISSUES SPUR LAWSUITS\Deputy, fire officials dispute exemptions.

Byline: Kermit Pattison Daily News Staff Writer

Ventura County is facing a high-stakes legal battle on a simple question: Are sheriff's lieutenants and fire battalion chiefs hourly workers or executives?

The county is litigating two federal lawsuits on the issue - one filed by a group of 21 current or former fire battalion chiefs and another by a sheriff's lieutenant. Both accuse the county of withholding overtime pay in violation of the federal Fair Labor Standards Act.

"They are hourly employees," said Duane Reno, a San Francisco attorney representing the fire battalion chiefs. "They have to be at work at a certain time and can't leave until their shift is over. They're not free to take time off during the day. . . . There isn't really anything about their employment that isn't hourly."

But Ventura County attorneys argue that fire battalion chiefs and sheriff's lieutenants are not entitled to overtime pay, at 1-1/2 times the regular rate, because they fall under a labor law exemption for executives.

"It's the same reason executives are not paid overtime in any other endeavor," said Bill Moritz, an assistant county counsel. "They are paid a salary, and that salary is to cover all their responsibilities."

Moritz said the Depression-era Fair Labor Standards Act exempts executives from overtime pay. He said the act became applicable to government agencies in the 1980s.

"You don't think the president of a company would get time and a half for his work," Moritz said. "He gets paid a straight salary. The issue is, at what point is someone an executive, and what point is he a worker?"

But attorneys on both sides said the legal question is an unsettled one because of an array of conflicting court decisions. Similar litigation has embroiled government agencies across the nation.

"In the beginning it seemed fairly clear," Reno said. "But then the Department of Labor mucked it up, and the courts got even crazier."

The issue arose in 1990 when a group of 11 battalion chiefs from the Ventura County Fire Protection District sued the county for overtime back pay and damages. More plaintiffs later joined the lawsuit to bring the total to 21 current and former battalion chiefs.

The battalion chiefs said they had been denied overtime pay since 1986 in violation of the Fair Labor Standards Act.

A federal judge in 1993 ruled in favor of the firefighters, awarding them $440,000 in back pay, Reno said. The back pay awards for each battalion chief ranged from $3,950 to $52,178.

But both sides appealed, and an appeals court last summer struck down the district judge's decision and sent the case back to the trial court.

Attorneys for the county and the battalion chiefs have begun feeling out the possibility of a settlement on the case. The Ventura County Board of Supervisors will discuss the lawsuit in closed session Tuesday.

"We're attempting to work out a settlement," Reno said. "I don't think we or the county want to go through this whole procedure all over again."

Ken Maffei, president of the Ventura County Professional Firefighters Association, believes the battalion chiefs should get overtime pay just as rank-and-file workers do. Neither Maffei nor his union have any direct involvement in the lawsuit.

"I don't know why they're not getting the overtime," he said. "They should be. They're not management from the aspect of their shift schedule and what they do."

In the second case, Ventura County Sheriff's Department Lt. Arv Wells sued the county in 1995, seeking overtime back pay and damages.

The claim says Wells and other lieutenants were required to work more than 85.5 hours in 14-day periods, but the county refused to pay overtime or give compensatory time off.

In the lawsuit, Wells argues that lieutenants should not be considered executives because they are nonsalaried employees, subject to disciplinary procedures, and they work on shifts ordered by their superiors.

Saying lieutenants were prohibited from keeping records of overtime hours, the claim is not specific about how much money Wells believes he is owed.

Wells declined to comment on the case and referred questions to his attorney. His attorney, Bill Shaeffer of Irvine, also declined to discuss the case.

"I really can't make any comments over and above what's in the complaint," he said. "The complaint should be self-explanatory."

Wells is the only plaintiff named in the action, but the lawsuit said other lieutenants could join later. The larger legal questions underlying both suits probably will remain in dispute for years to come until the courts resolve the tangle of contradictory decisions, Moritz said.

"There's a proliferation of these cases throughout the United States," Moritz said. ". . . It will probably be a few years before it all shakes out."